JLA Law Group

Prosecutorial Discretion in Immigration Cases — Georgia Immigration Attorneys

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Prosecutorial discretion in immigration law refers to the authority of the Department of Homeland Security — including ICE, USCIS, and CBP — to decide when and how to exercise enforcement authority, including decisions about whether to initiate removal proceedings, continue or dismiss proceedings, detain or release individuals, and execute removal orders. Like prosecutors in the criminal context, immigration enforcement agencies cannot pursue every case and must make judgments about resource allocation based on priorities, humanitarian factors, and the public interest.

Prosecutorial discretion has been exercised in various forms throughout immigration history and can take many shapes: administrative closure of cases (effectively suspending proceedings without a final order), termination of removal proceedings, deferred action (declining to pursue removal for a defined period), stays of removal, and agreement to join in a motion to continue or reopen. The availability and likelihood of favorable prosecutorial discretion depends significantly on current enforcement priorities, which shift with administrations, and on the specific facts of the individual case.

JLA Law Group advocates for prosecutorial discretion in appropriate cases involving clients in Georgia who have strong equities: long-term residents, individuals with serious medical conditions, parents of US citizen children, veterans, and others with compelling humanitarian circumstances. We submit formal prosecutorial discretion requests to ICE and USCIS, document the equities, and appear before the Immigration Court to request administrative closure or termination. We provide honest assessments of the current enforcement climate and realistic expectations.

Steps You Should Take

1

Assess Equities and Current Enforcement Climate

We conduct a thorough review of your immigration history, family situation, length of residence, employment, medical needs, and criminal record — if any — and compare against current DHS enforcement priorities to realistically assess the likelihood of prosecutorial discretion being exercised favorably.

2

Compile Equity Documentation Package

We gather comprehensive supporting documentation: tax returns showing years of US residence and contribution, employment verification, school records for US-educated children, medical records, community organization letters, military discharge papers if applicable, and declarations from family members.

3

Submit Prosecutorial Discretion Request to ICE

We prepare and submit a formal prosecutorial discretion request packet to the appropriate ICE Chief Counsel's office, making the case for case dismissal, administrative closure, or deferred action based on the documented equities.

4

Pursue Administrative Closure or Termination in Immigration Court

Simultaneously, or if the ICE request is denied, we file motions in Immigration Court for administrative closure or termination of proceedings, presenting the equities record to the Immigration Judge. We also continue to pursue any available affirmative relief. Call JLA Law Group at (770) 609-9396.

Frequently Asked Questions

What factors does ICE consider for prosecutorial discretion?
ICE policy memoranda have at various times listed relevant factors including: length of US residence; family relationships with US citizens or LPRs (especially minor children); military service; serious health conditions; young age of arrival; educational ties; community contributions; criminal history (negative factor); prior immigration violations; and whether the person arrived as a minor. Current enforcement priorities must also be evaluated as they change with each administration.
What is administrative closure?
Administrative closure is a procedural tool that effectively suspends removal proceedings by removing a case from the Immigration Court's active docket without a final order. It allows the individual to remain in the US while the case is paused. Cases can be recalendared by either party. While administrative closure was significantly restricted in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), the Biden administration's Matter of Cruz Valdez, 28 I&N Dec. 326 (A.G. 2021) restored broader authority for IJs to grant administrative closure.
Does prosecutorial discretion provide permanent status?
No. Prosecutorial discretion — including deferred action — is a temporary, revocable exercise of enforcement authority. It does not confer lawful immigration status, does not provide a path to permanent residence, and can be revoked at any time based on changed circumstances or enforcement priorities. It is a stopgap, not a solution, and should be pursued alongside efforts to obtain more permanent relief.
Can I request prosecutorial discretion if I have a criminal record?
A criminal record significantly reduces — but does not automatically eliminate — the possibility of prosecutorial discretion. The severity, nature, and recency of the conviction are important factors. Older, minor, or single offenses may still allow for discretion in compelling humanitarian cases. More serious criminal histories make discretion much less likely under current enforcement policies.
How do I request prosecutorial discretion from ICE?
A prosecutorial discretion request is typically submitted as a written packet to the ICE Office of Chief Counsel or the field office with jurisdiction over the case. The packet documents the individual's positive equities, community ties, family relationships, employment, medical needs, and any other compelling factors. In Immigration Court, we file a motion for administrative closure or termination with supporting documentation.

Applicable Laws

INA § 242(g) / 8 U.S.C. § 1252(g)Statutory provision limiting judicial review of certain DHS enforcement decisions, reflecting Congressional recognition of prosecutorial discretion authority in immigration enforcement.
8 CFR § 1003.10(b)Regulation granting Immigration Judges authority to take any action consistent with their powers and duties, the legal basis for IJ-level prosecutorial discretion tools including administrative closure and continuances.
Matter of Cruz Valdez, 28 I&N Dec. 326 (A.G. 2021)Attorney General decision restoring Immigration Judge authority to grant administrative closure based on case-specific facts, overriding the restrictive Matter of Castro-Tum decision and allowing broader use of administrative closure as a prosecutorial discretion tool.
Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)Supreme Court decision recognizing and affirming broad Executive Branch prosecutorial discretion in immigration enforcement, establishing the constitutional and statutory basis for DHS discretion to decline or defer enforcement.

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